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|Authors:||Duncan Kenyon, Nikki Way, Andrew Read, Barend Dronkers, Benjamin Israel, Binnu Jeyakumar, Nina Lothian|
|Publish Date:||October 2016|
|PDF Download:||[Landowners' Guide] [Landowners' Primer]|
Project Initiation and Consultation
Negotiating and Leasing
Disputes and Concerns
Landowners and Media Outreach
|Pipelines and Other Infrastructure|
|Abandonment and Reclamation|
|Compensation, Rights, and Hearings|
If you need help with negotiations, you can ask the Alberta Energy Regulator (AER) to facilitate your meetings with land agents or company representatives. They have trained staff who can act as facilitators at everything from informal “kitchen table” meetings to more formal discussions between you and the company.
If direct negotiations fail, parties can use the Alternative Dispute Resolution (ADR) process. The ADR process is an alternative to the hearing process, which can be expensive and require a considerable time and financial commitment from all parties. The process may be used for any disputes related to energy development in Alberta (projects under the jurisdiction of the National Energy Board use a similar process, see Working with the National Energy Board). The ADR process may involve facilitation, mediation, negotiation, arbitration or a combination of these strategies (see Appendix E Glossary for definitions). The ADR process isn’t limited to issues within the jurisdiction of the AER, so in some cases this process may enable a broader range of issues and resolution than what the AER can typically regulate, such as compensation. The process can be used at any point in the project life cycle, from the project planning phase until after the project is complete. Typically, the ADR program is voluntary, unless required by hearing commissioners after an application has been recommended for a hearing.
The AER will attend ADR meetings to facilitate and provide regulatory and other information, or act as mediators or negotiators. Mediation is helpful when situations are too complicated or controversial to be settled through facilitation alone. Mediation is usually provided by trained AER mediators; however, in some cases the AER may recommend, or you can request, a neutral third-party mediator who has experience with the energy industry. Those involved in a dispute can select an external mediator, either from the list on the AER website, or from the ADR Institute of Alberta (see Mediation and Arbitration).
Before full mediation through the ADR program is pursued, negotiating parties should consider engaging in a preliminary Alternative Dispute Resolution (PADR) meeting. This preliminary meeting will decide who will take part in the discussions, the issues to be discussed, how the mediator will be selected, the role of advisors (such as AER staff, lawyers and technical experts), what options are available to resolve the dispute, and how costs will be allocated. One of the principles of the PADR program is that the industry participants should cover the nominal costs of the preliminary meeting, including direct third-party costs incurred by landowners and public. Anyone considering using PADR or ADR should read the AER’s guidelines.
|The AER’s Alternative Dispute Resolution process has existed in some form or another since the early 2000s. In 2014, the ADR program resolved 90% of its cases fully or partially.|
If you want to work in good faith to resolve issues with the company, but it seems that negotiations may be lengthy and involve considerable time reviewing and writing documents, it is not unreasonable to ask the company to provide partial or even full compensation. When a company reimburses some or all of the costs, individuals and groups can be more effectively involved in the process, and the company demonstrates that it is willing to cooperate and shoulder the responsibility for inconveniencing landowners.
Although there are no formal cost recovery guidelines, the AER works with parties to determine cost recovery. You should ensure that you agree in writing with the company what they will cover for costs. Usually, the AER will facilitate this conversation at the beginning of the ADR process (such as the preliminary ADR meeting), to ensure that costs do not remain the focus of the conversation for too long. Like the cost recovery program in the hearing process, costs might include your time and expenses, such as long-distance telephone charges and photocopying. If travel is involved, mileage, meals and accommodation costs should be recorded. Where possible, receipts should be obtained for all the expenses, and you should keep track in writing the time needed for all discussions, meetings or research. In the case of small groups and coalitions, it may be best to ask the company to pay the group for time involved, leaving the group to allocate the fund based on the relative contribution of time from its members.
You may want to get a sense of the company’s past compliance history, as a good track record may give you more confidence in the outcome of negotiations and the project as a whole. You can view their publicly available compliance record on the AER’s Compliance Dashboard. The compliance dashboard will include more recent incidents under the AER, but you may need to contact the AER Inquiries line to get a more complete history. You can also contact Environment and Parks information services, which may be able to give you a summary of a company’s environmental compliance record before the creation of the AER. Although the AER boasts a high compliance rate, much of the enforcement system relies on self-reporting and it is not unheard-of for companies to breach, unintentionally or otherwise, rules and requirements.
It is important to know that the ADR process is confidential. This allows parties to speak freely, and to determine appropriate solutions to the issues at hand without being hampered by concerns about confidential information being shared outside the group. However, this may limit your ability to speak about some of your issues in public, including in subsequent hearings related to the conversation, or to share with your neighbour for their conversations with the same company. All parties to the ADR process must agree to allow any resolutions from the process to be unbound by the ADR confidentiality clause in order for you to speak publicly about it.
If the application has been submitted, yet you feel that a company is not seriously trying to minimize potential impacts, you can ask the AER to hold a hearing by submitting a statement of concern after the application has been submitted to the Regulator (see When the Application is Filed: Submitting a Statement of Concern and Alberta Energy Regulator Hearings). If a hearing is recommended, but the hearing commissioners feel that you have been less than cooperative in trying to resolve the issue outside of a hearing, they have the power to deny you cost reimbursement for the hearing process. Therefore, you should make a reasonable effort to address your concerns through negotiation or the ADR process before deciding to pursue a hearing.
If there are difficulties concerning the location of an interprovincial pipeline, timing and method of construction, or protection of the land associated with that pipeline, you and the company can use the National Energy Board (NEB) Appropriate Dispute Resolution process (which is a similar process to the AER’s Alternative Dispute Resolution process, discussed above). You and the company can also use this dispute resolution process, if you wish, to discuss the amount of compensation to be paid for the use of land or damage caused by construction or maintenance of the pipeline. However, as the NEB does not have a mandate to decide compensation, if the company and landowner cannot come to an agreement using the NEB process, they have to ask the Minister of Natural Resources to appoint a negotiator or an arbitration committee. The arbitration committee can, among other things, decide whether the company must pay compensation in a lump sum, or as annual or periodic payments. If the NEB Appropriate Dispute Resolution process fails, matters will be dealt with at an NEB hearing (see National Energy Board Hearings).
More information about the NEB, pipeline regulations, and your rights as a landowner can be found in the NEB landowner’s guide.
If negotiations have failed and you want the AER to formally address your concerns (other than compensation) after the company has submitted their application, the next step is to submit a statement of concern to the AER. If the AER is aware of any outstanding concerns, the company is required to submit their application through the non-expedited process, and the AER will not make a decision on an application until after the filing deadline outlined in the notice of application has passed. The notice of application will also outline other relevant information about the proposed project, and what you specifically need to address in your statement of concern. Companies are expected to send the notice of application to anyone who has outstanding concerns from the pre-application process. For example, anyone who submitted a pre-application concern should receive a notice of application. It is important for you to submit a statement of concern at this stage of the process if you want to trigger a formal process and ensure your concerns are still considered by the Regulator, because the Regulator is very unlikely to recommend an application for a hearing if no statements of concern have been submitted.
When submitting a statement of concern, you need to concisely explain why you believe you are both directly and adversely affected by the Regulator’s decision; the nature of your objection to the application; and the outcome you are looking for. To try and ensure the AER accepts your statement of concern and your request for a hearing, you should clearly establish the connection between the concern you’d like addressed, and how it may negatively impact you. It is helpful to be precise, and to “spell it out” for the AER. What may seem like an obvious connection between the project and the issue of concern won’t necessarily be obvious to those reviewing your statement of concern, and the AER won’t consider facts that aren’t brought before it. Include all relevant details to establish why the project or a specific element of a project is connected to the concern you are expressing. For example, if you are concerned about flaring, it may help to include a map that outlines where the potential flare stack may be located in relation to your house, where you spend time in your garden, where animals are located, or where your children play outside. If you believe that the close proximity of the project to where you spend you time will exacerbate a health issue, clearly outline this.
In addition to the details about your concern, you need to include other relevant details, such as your contact information and your location relative to the location of the proposed energy resource activity. It is important to submit your objections within the filing period. The AER will consider your statement of concern when reviewing the application, and, if your statement of concern meets the requirements, assess whether it will hold a hearing.
You can review recent participatory and procedural decisions from the AER on their website. You will likely only find decisions on statements of concern that have not been recommended for a hearing, but these may give you a good sense of how the AER decides who is directly and adversely affected as these decisions briefly outline the reasoning for not recommending the application for a hearing. Currently, the AER has a fairly narrow interpretation of who is directly and adversely affected — typically people who are not the direct landowners or immediately next to a project have a difficult time establishing that they are directly and adversely affected. Statements must be submitted in writing; calling the Regulator does not count as submitting a statement. Statements of concern must be submitted individually by each concerned party, or as a single submission on behalf of a group by one designated representative under the group name (see Forming a Group With Landowners and Concerned Citizens below for more information on working with groups).
You must submit your statement within 30 days of the notice of the application, or by the date specified in the notice (which will be less than 30 days). The AER must wait for the period for filing a statement of concern to pass before they will approve a project, unless a project is submitted as a “routine application”. Companies are allowed to fill a routine application if they do not require regulatory leniency, and if there are no outstanding concerns. If the Regulator does not receive any statements of concern, they likely will not hold a hearing. If the Regulator has already made a decision on an application, then they may not consider a statement of concern, so it is important to submit your statement as soon as possible.
Any statement of concern you submit will become part of the public record, so you should not include personal, medical, financial, or other information that you wish to remain confidential. If you have information that may aid in making your case that you are directly and adversely affected but that you wish to keep confidential, it may help for you to indicate that this additional relevant information is available but confidential and that you would reveal it to the Regulator at a later time. You may wish to contact the AER’s stakeholder engagement team to determine the best way to include this information.
Consult the AER’s EnerFAQ: Expressing Your Concerns for more information about statements of concern.
If the project is already approved and it is too late to submit an official statement of concern, you can submit a request for a Regulatory Appeal or a request for an reconsideration (see Regulatory Appeals for AER Decisions Made Without a Hearing or Reconsiderations and Legal Challenges to Hearing Decisions).
Sometimes it is not possible to reach agreement, even through a combination of negotiation, facilitation, or mediation. If this is the case, the company or landowner can ask the AER to consider holding a hearing (Public Hearings and Regulatory Board Processes), or apply for a right-of-entry order through the Surface Rights Board (described in more detail in Right-of-entry orders when landowner and company cannot agree and Right-of-entry orders by the Surface Rights Board)
If you are thinking about asking the Regulator to hold a hearing, you need to have strong evidence of the damage that an energy development could potentially cause you or your family, or reasons why it is not in the public interest to allow the project to proceed. While the AER has rarely prohibited a development, it may attach conditions to licences that address concerns that the hearing board had with the application. You will likely get a more satisfactory resolution of problems if you try to negotiate and then, if necessary, ask the AER to facilitate or arrange mediation through the ADR process, rather than do nothing and simply refuse access.
Occasionally a landowner may be so strongly opposed to a proposed development that they are unwilling to attempt negotiation. If that is the case, it is important to consider the implications. If a landowner refuses to negotiate and makes it clear from the start that “No means No,” the company will inform the AER when they submit their application. The AER may suggest that the landowner should negotiate with their facilitator or with a third-party mediator, but if this is still unsuccessful, the company may ask the AER for a hearing. If a landowner has not tried to resolve the issues through negotiation or explained to the AER why any anticipated adverse effects cannot be handled through negotiation, the AER may dismiss the objection and approve the application without a hearing. If a hearing is triggered, the hearing panel may not grant costs to the landowner if they believe that the issue should have been dealt with through the ADR process. Thus, before taking this stand it is crucial for a landowner to consider their chances of securing all of their demands at a hearing, given the fact that the AER has made very few decisions that actually prohibit development.
If, after weighing the above considerations, you do decide to fight an application, you will need to make a strong case. You may also want to garner the support of as many surrounding neighbours as possible. Each person should write a clear statement of concern to the AER, sending a copy before the deadline to the AER, as outlined in the Notice of Application. Copies should also be sent to the company proposing the development, the relevant MLA, the energy and environment critics for opposition parties, and relevant media. If the application is non-routine (for example when there are outstanding issues that the operator has identified), you should have 30 days to submit a statement of concern, in which you can suggest that the project be considered by a hearing. The AER has full discretion for when a hearing is triggered, but is most likely to decide to trigger a hearing when one or multiple parties, considered by the Regulator to be directly and adversely affected, makes their case that the issue is best resolved by hearing.
Adequate preparation for a hearing, including obtaining legal counsel and arranging appropriate technical expert witnesses, is essential; Public Hearings and Regulatory Board Processes provides more information on hearings.